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Thread: Chesapeake, VA Firearms Code for Minors

  1. #1
    Regular Member Thundar's Avatar
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    Chesapeake, VA. has a law which requires a Chief of Police issued permit for those under 18 to use or carry firearms. I am concerned because my son is put in jeopardy by what I percieve as a preempted local law. The police dept is not helpful or responsive to my request for a permit or a permit application

    The code:

    Sec. 46-44. Same--Persons under 18 years of age.


    (a)It shall be unlawful for any person under the age of 18 years to shoot, carry or use any firearms within the city unless a permit is first obtained from the chief of police, except when on a properly established target shooting range which is being supervised by a representative of the armed services of the United States or the state or an instructor certified by the National Rifle Association.

    (b)Application for such permit shall be made in person to the chief of police of the city and the applicant shall be accompanied by his or her parent or guardian who shall give his or her approval to the issuance of the permit.

    (c)A minor under 18 years of age shall be accompanied by an adult while hunting, except on property owned by his or her family.

    (Ord. of 11-12-63; Code 1970, § 17-61)

    I think that this law is covered by Virginia's preemption law, making it invalid. Virginia Preemption Law:

    § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.

    Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.

    The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.

    B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

    (1987, c. 629, § 15.1-29.15; 1988, c. 392; 1997, cc. 550, 587; 2002, c. 484; 2003, c. 943; 2004, cc. 837, 923.)

    I have written the Chief of Police for a permit application and have been ignored. I have visited the Chesapeake Police Headquarters to be told that the Chief of Police is not avalable forMinor Handun Permits, and that there is nobody else that can help me.

    Just to be clear I don't think there are any state or federal law issues for my son, only this local one. My son is over 14 (15 and 1/2) and has a permission slip as reuired by fedreal law.

    My next two planned actions are a FOIA request to the Chief of Police for a minor permit application and a request to the City Attorney asking whether the city considers the local law valid or invalid. (Ifthe city attorney feels the law isinvalid, I will ask the city attorney to recommend that the city council to remove the law from the city code.)

    Am I reading the local and Commonwealth laws correctly, or did I miss something?




    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

  2. #2
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    Yes, this ordiance is preempted. You should bring it to the attention of your City Councilman for repeal.

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    I agree....

    The state code clearly identifies that the local ordinance is now invalid.

    The local ordinancecannot continue to permit something the stateprohibited years later.



    § 18.2-308.7. Possession or transportation of certain firearms by persons under the age of 18; penalty.

    It shall be unlawful for any person under 18 years of age to knowingly and intentionally possess or transport a handgun or assault firearm anywhere in the Commonwealth.

    ... Snipped ...

    (1993, cc. 467, 494; 2003, c. 976; 2004, c. 995.)




    § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

    ... Snipped ...


    B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

    (1987, c. 629, § 15.1-29.15; 1988, c. 392; 1997, cc. 550, 587; 2002, c. 484; 2003, c. 943; 2004, cc. 837, 923.)





    So this local ordinance is useless.



    Sec. 46-44. Same--Persons under 18 years of age.

    (a)It shall be unlawful for any person under the age of 18 years to shoot, carry or use any firearms within the city unless a permit is first obtained from the chief of police,

    except when on a properly established target shooting range which is being supervised by a representative of the armed services of the United States or the state or an instructor certified by the National Rifle Association.

    (b)Application for such permit shall be made in person to the chief of police of the city and the applicant shall be accompanied by his or her parent or guardian who shall give his or her approval to the issuance of the permit.

    (c)A minor under 18 years of age shall be accompanied by an adult while hunting, except on property owned by his or her family.

    (Ord. of 11-12-63; Code 1970, § 17-61)






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    The local ordinancecannot continue to permit something the stateprohibited years later.

    ????? - Please clarify. Your wording appears that you disagree but you say you agree.

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    Hmm, this is intresting. I had never heard of this requirement before. Although I feel it it preemted, and Ches. govmt may feel the same, it is doing them no good in ignoring you about it.

    I would address the city council about it. And like you say, I'd submit a FOIA for the application and any processes in how they are to be handled.

    This is a little concerning because I take my son to the Norfolk County Rifle Range at times and we/he is not supervised by the military or NRA certified instructor.

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    bayboy42 wrote:
    The local ordinancecannot continue to permit something the stateprohibited years later.

    ????? - Please clarify. Your wording appears that you disagree but you say you agree.
    1963 The local ordinance drafted Sec. 46-44. Same--Persons under 18 years of age

    1987 The state created a code 15.2-915. Control of firearms

    1993 The state created a code18.2-308.7. Possession or transportation of certain firearms by persons under the age of 18

    Therefore... in 1987 the local ordinance 46-44 was no longer valid and then in 1993 the local ordinance would have been allowing somethingstate code 18.2-308.7 prohibited.

    So if the local ordinance was giving out permits for under 18 years to carry firearms (a handgun)... this would be in direct contradiction to the 1993 state code prohibiting it.

    unless otherwise prohibited.. as in the code 15.2-915... the local jurisdictions can only make laws tougher and not the other way around.

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    Interesting topic - you guys are great at finding all sorts of abstract talking points relating to firearms!

    So, as I understand...my nine year old son would be permitted to carry his AR-15 around the neighborhood since:

    1. He would only carry a 10 or 20 round mag - the 30s are for the big guys like us!
    2. His evil flash suppressor is permentally attached per BATFE regs so his rifle could not accomodate a silencer.
    3. His tactical stock is a six position collapsable one vice a folding one (or we could just change it out for a fixed shorty if necessary)
    PS - Although some may be repulsed at the thought of a young man carrying around a firearm the fact is hundreds of thousands of young boys have spent countless hours carrying guns on the family farm, into the city, etc.



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    Renegade wrote:
    Interesting topic - you guys are great at finding all sorts of abstract talking points relating to firearms!

    So, as I understand...my nine year old son would be permitted to carry his AR-15 around the neighborhood
    State code makes 14 the min age to possess long guns - not sure of the code section, but I think somebody touched on it above.



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    It's pre-empted, Thundar. Note the above posts.

    That just means you should get ahold of the Chesapeake council and point out their error.

    And you should have your son get a copy or two of those "Virginia Gun Rights" cards to carry.

    And maybe a copy of the pre-empt law...
    Why open carry? Because 1911 > 911.

  10. #10
    Regular Member Thundar's Avatar
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    The FOIA request from the City Attorney's Office is posted below. I am asking what the procedure is for the City Council to remove the invalid code.



    The response:

    I am attorney for the City of Chesapeake ("Chesapeake")and am in receipt of your Virginia FOIA request. This message serves as Chesapeake's response to your request for public records regarding an alleged permitting process for the issuance of a gun permit to persons under the age of 18.


    Chesapeake does not possess the records thatyou have requested, except for the Chesapeake Police Department's ("Department")policy on handling juveniles. The Department does not possess or maintain a permit application for persons under the age of 18 to shoot, carry, or use firearms; (ii) the Department does notpossess or maintain any permittingprocedures for the same; and (iii) the Department does not possess or maintain any criteria, policies,or procedures with regard to section (i) above. Pursuant to Section 2.2-3704 (D)of the Code of Virginia, 1950 (asamended),Chesapeake is not required to create a new recordto satisfy a FOIA request.

    Additionally, City Code Section 46-44 wasadopted byChesapeake long before the change in state law, which recently took awayany authority that the localities in Virginiamight havepossessed at one time with regard to governing the purchase, possession, ownership, carrying, etc. of firearms. Section 15.2-915.2(A) and (B) not only prohibits localities, like Chesapeake, from adopting or enforcing any ordinance governing the possession, ownership, carrying, etc. of firearms; italsorenders anysuch ordinance invalid. Also,localities do not have any authority to govern the use, possession, ownership,carrying, etc. of firearms,except as expressly provided by state law. The changein state law doesnot grant localities the authority toissue a permit to minors (persons under 18).

    You also requested the Department's policy with regard to encountering a minor in possession ofa firearm. I do not have the ability to submit to you electronically, the Department's Policy# 2.4.13 regarding JuvenileIntervention. If you kindlyprovideme with your fax number, I can fax it to you today. If you do not have a fax a number, I will have to mailit to the address youprovided, which will take a little longer to get to you. Please advise whether you prefer to have it mailed or faxed to you. Thanks.

    Thus,Chesapeake does nothave the recordsthat you have requested for the reasons stated above, except for the Department's Policy on handling juveniles.I hope that this response clearly articulatesthe reasons why Chesapeake does not possess the requested records. Certainly, if you have any questions, please do not hesitate to call me.


    Best regards,

    *****
    LEO 229 you appear to have been 100% correct.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

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    LEO 229 wrote:
    bayboy42 wrote:
    The local ordinancecannot continue to permit something the stateprohibited years later.

    ????? - Please clarify. Your wording appears that you disagree but you say you agree.
    1963 The local ordinance drafted Sec. 46-44. Same--Persons under 18 years of age

    1987 The state created a code 15.2-915. Control of firearms

    1993 The state created a code18.2-308.7. Possession or transportation of certain firearms by persons under the age of 18

    Therefore... in 1987 the local ordinance 46-44 was no longer valid and then in 1993 the local ordinance would have been allowing somethingstate code 18.2-308.7 prohibited.

    So if the local ordinance was giving out permits for under 18 years to carry firearms (a handgun)... this would be in direct contradiction to the 1993 state code prohibiting it.

    unless otherwise prohibited.. as in the code 15.2-915... the local jurisdictions can only make laws tougher and not the other way around.
    15.2-915 was created in 1987 to stop local goverments from making new gun laws unless allowed by the state. All local laws that were in existance at that time were grandfathered and still enforcable (partial preemption). Therefore local ordinance 46-44 was still valid.

    In 2004 15.2-915 was ammended to full premption. All local laws were invalidated (no longer grandfathered), unless another state law allows the locals to make a certain law as defined by that law. For example state law allows local governments to make laws regarding the discharge of firearms.

    So, the part of local ordinance 46-44 regulating the discharge of firearms by those under the age of 18 may still be valid, although the rest of the ordinance is no longer valid and enforcable and superceded by 18.2-308.7 & 15.2-915.
    Revelation 1911 - And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war.

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    Sec. 46-44. Same--Persons under 18 years of age.

    (a)It shall be unlawful for any person under the age of 18 years to shoot, carry or use any firearms within the city unless a permit is first obtained from the chief of police,

    except when on a properly established target shooting range which is being supervised by a representative of the armed services of the United States or the state or an instructor certified by the National Rifle Association.

    Most privately owned firing ranges are NRA afiliated and have range officers certified by the NRA.
    Revelation 1911 - And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war.

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    Oooops! double post.
    Revelation 1911 - And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war.

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